Federal Court Affirms That Deceptively Edited Anti-Choice Videos Are Fraudulent And Not Journalism

On February 5, a federal judge issued a preliminary injunction against the Center for Medical Progress (CMP) -- Media Matters' 2015 Misinformer of the Year -- barring founder David Daleiden and alleged co-conspirators from releasing any of the deceptively edited footage they obtained under false pretenses during National Abortion Federation (NAF) events. As explained by the judge, CMP's fraudulent videos were not journalism and the value of their release did not outweigh the very real anti-choice violence they could incite.

Joining a chorus of investigations clearing Planned Parenthood of wrongdoing, Judge Orrick wrote that after a complete review "of the records or transcripts in full and in context, I find no NAF attendees admitted to engaging in, agreeing to engage in, or expressed interest in engaging in potentially illegal sale of fetal tissue for profit."

Judge Orrick also refuted the unconvincing argument that Daleiden is an investigative journalist. Judge Orrick wrote that CMP did not "-- as Daleiden repeatedly asserts -- use widely accepted investigatory journalism techniques" and that they had "no evidence to support that assertion and no cases on point." Instead, Judge Orrick argued that videos resulting from CMP's work "thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions...of criminal misconduct."

Judge Orrick also directly referenced the uptick in anti-choice violence and harassment since the release of the videos, noting "[i]t is not speculative to expect that harassment, threats, and violent acts will continue to rise if defendants were to release NAF materials":

Having reviewed the records or transcripts in full and in context, I find that no NAF attendee admitted to engaging in, agreed to engage in, or expressed interest in engaging in potentially illegal sale of fetal tissue for profit. The recordings tend to show an express rejection of Daleiden's and his associates' proposals or, at most, discussions of interest in being paid to recoup the costs incurred by clinics to facilitate collection of fetal tissue for scientific research, which NAF argues is legal.

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Defendants passionately contend that public policy is on their side (and the side of public disclosure) because the recordings show criminal wrongdoing by abortion providers - a matter that is indisputably of significant public interest. ... I have reviewed the recordings relied on by defendants and find no evidence of criminal wrongdoing. At the very most, some of the individuals expressed an interest in exploring a relationship with defendants' fake company in response to defendants entreaties of how "profitable" it can be and how tissue donation can assist in furthering research. There are no express agreements to profit from the sale of fetal tissue or to change the timing of abortions to allow for tissue procurement.

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The context of how defendants came into possession of the NAF materials cannot be ignored and directly supports preliminarily preventing the disclosure of these materials. Defendants engaged in repeated instances of fraud, including the manufacture of fake documents, the creation and registration with the state of California of a fake company, and repeated false statements to a numerous NAF representatives and NAF members in order to infiltrate NAF and implement their Human Capital Project. The products of that Project - achieved in large part from the infiltration - thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect to the NAF materials) of criminal misconduct.Defendants did not - as Daleiden repeatedly asserts - use widely accepted investigatory journalism techniques. Defendants provide no evidence to support that assertion and no cases on point.

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As noted above, since defendants' release of the Project videos (as well as the leak of a portion of the NAF recordings), harassment, threats, and violent acts taken against NAF members and facilities have increased dramatically. It is not speculative to expect that harassment, threats, and violent acts will continue to rise if defendants were to release NAF materials in a similar way. Weighing the public policy interests on the record before me, enforcement of the confidentiality agreements against defendants is not contrary to public policy.